122 CAPITOL STREET

SUITE 200

MIKE KELLY

ATTORNEY AT LAW

POST OFFICEBOX 246

CHARLESTON, WEST VIRGINIA 25321

(304) 344-3293

FAX (3041344-8546

SANDRA K. MOLESLEGALASSiSTANT

MIKE KELLYDENNISE SMITH - KASTICK

Antoinette Spino1415 South PinecrestWichita, KS 67218

Cyndee Kleis .Manager Employee RelationsSally Beauty Company, Inc.P. O. Box 490Denton, TX 76202

Sandra K. HensonAssistant Attorney GeneralL&S Building - 5th Floor812 Quarrier StreetCharle~on,VfV 25301Counsel to the Commission

Ricklin BrownP. O. Box 1386Charle~on, VfV 25325Counsel for respondent

Herman Jones, Executive DirectorWest Virginia Human Rights Commission1321 Plaza East, Room 104-106Charleston, WV 25301

cc: Herman Jones, Executive DirectorWest Virginia Human Rights Commission

~~MIKE LYAdministrative Law JPost Office Box 246Charleston, West Virginia 25321(304) 344-3293

BEFORE THE-WEST VIRGINIA HUMAN RIGHTS COMMISSION

lTo the extent that the findings, conclusions and arguments advanced by the parties are inaccordance with the findings, conclusions and discussion as stated herein, they have beenaccepted, and to the extent that they are inconsistent therewith, they have been rejected. Certainproposed findings and conclusions have been omitted as not relevant or as not necessary to aproper determination of the material issue as presented. To the extent that the testimony ofvarious witnesses is not in accord with the findings herein, it is not credited.

1. Complainant Antoinette Spino was, at time of hearing, a resident of Hepzibah,

Harrison County, West Virginia. Her date of birth is 27 January 1937. She was first hired by

respondent in August 1990, when she was 53 years of age. Ms. Spino currently resides in the State

of Kansas.

2. Sally Beauty Company, Inc. is a national beauty supply distributor and is an

"employer" as that term is defined by W.Va. Code §5-11-3(d). At all times relevant herein, Sally's

district manager and Ms. Spino's immediate supervisor was Douglas W. Garrett. Mr. Garrett

oversees operations at about a dozen Sally stores. Mr. Garrett became district manager in April

1991.

3. Ms. Spino was originally hired by Sally for a part time inside sales position. Within

two months of her hire, Ms. Spino was promoted to outside sales.

4. In July 1991, when she was fifty-four years old, Ms. Spino was promoted to the

position of store manager. The decision to promote her was initiated by Mr. Garrett, who at that time

had been with Sally only three months, and approved by his boss, Linda Sizemore.

5. Prior to employment with Sally, Ms. Spino had managed a familybusiness for eighteen

years and considered herself knowledgeable in the areas of sales and store management.

6. Complainant was discharged from her employment with Sally on or about 19 March

1993, when she was 56 years of age. She served as store manager for rougWy 21 months.

7. On 11 May 1992, some ten months after Ms. Spino was promoted to store manager,

Mr. Garrett completed a performance appraisal form which was signed by both individuals. (HRC

Ex. 5, Resp. Ex. 4). It appears to be her first evaluation as a store manager. Mr. Garrett gave Ms.

Spino a rating of "Very Good" in the areas of store operations and customer service, a rating of

"above average" in the areas of merchandising and staffing, and a rating of "average" in the area of

"communication". He rated her performance in relation to business objectives as follows: "very

good" in sales, "below average" in gross profit and "average" in both purchasing budget and cost of

sales.

8. The May 1992 evaluation also notes such various strengths and weaknesses in Ms.

Spino's performance as: "Follow up is weak and needs to improve. Assumes too much"; "Customer

service is handled as though the customer is king"; "Employees feel comfortable working and learning

from Toni"; "Time management is poor at this time"; and "Toni has the ability to do anything she

desires. Effort is always there. Needs to plan work better." According to Ms. Spino, she and Mr.

Garrett got along well that first year.

(a) "The front checkstand is in very poor shape. The merchandise on the capshelf of the checkstand is very weak;"

(b) "The area behind the checkstand is in very rough shape. There are twenty-three empty peg hooks in the cutlery section;"

(c) "There are numerous holes throughout the store. Perm rod section is 20%out-of-stock. Clairol and Wella color are in terrible shape with an excessivenumber of outs. Merchandise is on order, but the manager seems satisfiedbecause the merchandise is on order. I am directing Doug Garrett to get backin here and spend the appropriate amount of time training this manager onhow to properly merchandize and order the store;"

(e) "Basic shop is 20% out-of-stock and there are four empty bins in the bottlesection of the store. We just need an overall re-education of the manager onthe proper way to order for the store;" and

(f) "I checked the professional flyer and three items on the front page did nothave selftalkers. There are five items on the back page that were completelyout-of-stock. So in addition to showing the manager how to merchandise thestore on an everyday basis from the Order Book, we need to make sure weare properly covered on ad goods."

"The manager seems to be very interested in doing a good job andshows a great deal of desire, we just need to make certain that we get

back in and do the proper job of educating her on staying in-stock onkey items."

which means that particular shelf or pegboard areas are empty of merchandise, is anathema to saliy

shape. I was embarrassed." One of Mr. Maher's final comments in his dictated notes is that "Doug

will spend the necessary tim~ with her so she is able to be successful." (Resp. Ex. 21).

14. There was no credible explanation offered by either side as to how or why Ms. Spino's

performance appeared to be acceptable to Mr. Garrett in May 1992, but totally unacceptable to Mr.

Maher in July 1992. Ms. Spino did note that Mr. Garrett's attitude toward her became a problem

shortly after the Maher visit.

15. Mr. Garrett soon began working with Ms. Spino to address the concerns raised in Mr.

Maher's notes, which he received in approximately late July 1992.

16. Mr. Garrett's immediate supervisor, territory manager Linda Sizemore, reinspected

the Clarksburg store in December 1992. She found that conditions had not substantially improved

since Mr. Maher's visit the previous July. She directed Mr. Garrett to work closely with Ms. Spino

to improve the store's appearance and, if that did not work, to discharge her.

17. On 8 December 1992, Mr. Garrett issued the first "corrective action" disciplinary

measure against Ms. Spino. (Resp. Ex. 14). It could be fairly called a "written warning". The

document notes the following concerns, among others:

(a) Orders were not being properly placed;

(b) The store was out of stock on several key items;

(c) There were "holes" on the shelves and the pegboards;

A corrective action was given to you on 12/8/92 concerningunacceptable standards of your store. Follow up DM visits wereconducted on 12/17, 12/30, 1/6, 1/8, 1/26 & 1/29 showing someimprovement in areas of concern but no overall consistency atacceptable Sally standards. You are still not maintaining proper stocklevels due to improper ordering. Attached is another list of areas ofconcern that still need immediate improvement.

I am giving you 30 days to show immediate improvement to maintaincOnsistency in all areas of concern that I have talked with you about.If this does not occur & your store is not ordered & merchandisedproperly & not at acceptable Sally standards in all areas noted, youwill be terminated.

On 2/5/93 DM [district manager] checked order book & found over300 adjustments needed to correct order. Similar results were foundon visits on 2/19 & 2/25.

I am giving you 2 weeks to order store properly using current rate ofsales and maintain proper stock levels.

2 I make this finding regarding Ms. Sizemore's criticisms on the basis of Mr. Garrett'stestimony and not on the basis ofResp. Ex. 28, which was not admitted into evidence.

Age inName Position March 1993 Hire Date

Jennifer Quinn Full time, outside sales 19 July 1991

Beverly Bolick Full time, inside sales 40 October 1992

Judy Boyce Part time, inside sales 46 March 1992

Judith Coulson Part time, inside sales 49 January 1993

(a) For a period of time, Jennifer Quinn, while an employee of Sally and reporting to

complainant, lived in Ms. Spino's home and rented a portion of the home for her personal use;

(b) Ms. Spino eventually asked Ms. Quinn to move out, probably because the latter was

entertaining her boyfriend on site on a regular basis;

(c) Ms. Spino hired longtime close, personal friend Judy Boyce and was also friends with

Judy Coulson;

(d) By early 1993, Ms. Spino considered the two part time employees, Ms. Boyce and Ms.

Collison, to be on her side and the two full time employees, Ms. Quinn and Ms. Bolick, to be on Mr.

Garrett's side; and

(e) Ms. Quinn and Mr. Garrett, who was forty-one years of age in 1993, carried on a

flirtatious, ifnot sexual, relationship prior to Ms. Spino's discharge.

28. As stated above, after Ms. Spino was fired, Mr. Garrett chose Mr. Quinn to be the

new store manager. He immediately sent her out-of-state for management training. When Mr. Maher

learned that Mr. Garrett had promoted Ms. Quinn to manager he blocked the promotion and ordered

it rescinded, telling Mr. Garrett "I am not going to have a 19 year-old store manager. She doesn't

have the maturity to manage the store."

29. When Ms. Quinn returned from management training Mr. Garrett took her into the

store office and told her that she would not be the manager. She was disappointed, upset and began

to cry. At some point, Ms. Coulson unexpectedly entered the office. There was considerable

testimony and speculation at hearing as to what Ms. Coulson saw. I find as fact as follows:

(b) Ms. Coulson did not see any exposed intimate bodily areas;

(c) Ms. Cowson did not see them in a passionate embrace or pulling, zipping or buttoning

up their clothes; and

(d) Ms. Coulson did not see their bodies touching.

30. Based on the evidence elicited at hearing, and on my observation of Ms. Quinn and

Mr. Garrett, I find that more likely than not Mr. Garrett was comforting Ms. Quinn with a hug or

non-intimate embrace just prior to Ms. Coulson briefly entering the room.

31. Mr. Garrett eventually promoted Beverly Bolick to the store manager position. Within

a year of her promotion, Ms. Bolick fired Jennifer Quinn. Ms. Bolick testified credibly that she had

to inform Mr. Garrett of her intent to fire Jennifer and that he did not discourage or interfere with her

plans.

32. In regard to the Commission's allegation that Ms. Spino was discharged in order to

promote Ms. Quinn as a benefit for having a consensual sexual relationship with Mr. Garrett, I find

as fact as follows:

(a) Complainant was discharged for poor performance as initiallynoted by Mr. Maher and

Ms. Sizemore;

(b) Though she had greater experience and responsibilitywhen compared to the remaining

employees, Ms. Quinn was nonetheless promoted to take Ms. Spino's place primarily because of her

flirtatious relationship with Mr. Garrett or because of his desire to have a future intimate relationship

with her; and

(c) I find no unlawful connection between Ms. Spino's discharge and Ms. Quinn's

promotion. While Ms. Quinn was more likely than not promoted because of her then current or

expected "relationship" ties to Mr. Garrett, Ms. Spino was discharged because of her clear inability

to adhere to Sallypolicy, specifically in the areas of ordering and store appearance. The Commission

produced no evidence that Mr. Maher and Ms. Sizemore, who were very critical of Ms. Spino's skills,

were aware of Mr. Garrett's alleged ties to Ms. Quinn and sought to remove complainant in order to

further Mr. Garrett's relationship with the younger woman, or that they harbored any prejudice or bias

whatsoever against complainant.

33. I found Beverly Bolick to be mature, straight forward and credible. She testified that

she was mostly trained by Jennifer Quinn, not complainant, and that she observed that Ms. Spino

spent only one day a week for an hour or two ordering stock. She found Ms. Spino to be a

temperamental and erratic boss who "called me whore, she's called me bitch, she's called me fucking

bitch . . . It was cussing like they say a sailor does. "

34. I found Betty Ann Doan to be similarly credible. Ms. Doan, who is in her late 40's,

stated that she does ordering in her store four days a week. When she came in to manage the

Clarksburg store while Ms. Quinn was being trained she formed the opinion that the employees had

not been properly trained since they did not know how to assist in ordering and were unfamiliar with

an associate's regular duties other than waiting on customers and running the register.

35. Mr. Maher testified credibly that in December 1992 he received a telephone call from

Ms. Spino during which she complained that Mr. Garrett was coming to her store too often and

supervising her orders. Mr. Maher related Ms. Spino's concerns to Ms. Sizemore, who informed him

of her recent inspection of the store and its continued problems. During Ms. Spino's call to Mr.

Maher, she did allege that Mr. Garrett didn't like her, but she made no mention of any preferential

treatment allegedly afforded Jennifer Quinn.

36. Ms. Spino called Mr. Maher a second time in January 1993, stating Mr. Garrett was

"out to get me." Again, however, she made no mention of Ms. Quinn or possible age discrimination,

but stated that he was criticizing her abilities to do ordering.

37. The credibility of Ms. Boyce, Ms. Coulson and Ms. Spino were severely damaged by

their insistence that Judith Coulson "caught" Mr. Garrett and Ms. Quinn in a sexual act when, at best,

all she saw were "skirts flying" and Mr. Quinn retreating to the bathroom. Ms. Coulson's

observations was described by Ms. Boyce, who saw nothing hersel( as "Doug was sitting in the chair,

turned, and Jennifer was down on her knees," implying that they were engaged in a sexual act. Ms.

3 I make this finding independent of any consideration of the testimony of VictoriaMcMaster as to Mr. Garrett's credibility, which testimony was properly excluded.

41. I find as fact that Antoinette Spino was discharged from her employment for reasons

related to her job performance and not for reasons related to her age or the relationship between Mr.

Garrett and Ms. Quinn.

42. I find as fact that respondent did not commit an unlawful discriminatory act under the

West Virginia Human Rights Act.

I. Under the West Vrrginia Human Rights Act (BRA), it is unlawful for an employer to

use an employee's age as a reason to discharge her. W.Va. Code §5-11-9(l).

2. Under the West Virginia Human Rights Act and the regulations promulgated pursuant

thereto, it is a form of unlawful sex discrimination to grant a benefit (such as a promotion) to an

employee who submits to a supervisor's sexual advances, while denying that benefit to other persons

who were qualified to receive or maintain the benefit, provided that the sexual relationship between

the supervisor and the favored party was a substantial factor in the employment decision. W.Va.

Code §5-11-9(a); 77 WVCRR §4-3.5.

3. This case having been heard in its entirety, with all evidence submitted and considered,

it is not necessary to address whether the Commission established a prima facie case of

discrimination. Once all the evidence has been heard, and the "defendant has done everything that

would be required of him if the plaintiff had properly made out a prima facie case, whether plaintiff

really did so is no longer relevant." U.S. Postal Service v. Aikens, 460 U.S. 711, 715, 103 S.Ct.

1478, 1482 (1983). The job of the fact finder, after taking all of the evidence, is to address "the

ultimate question of discrimination vel non. " 103 S.Ct. at 1481. See, Barefoot v. Sundale Nursing

Home, 193 W.Va. 475, 457 S.E. 2d 152 (1995).

4. The burden on the Commission was to show by a preponderance of the evidence that

an unlawful reason, sex or age, was a motivating factor in the decision of respondent to discharge Ms.

It is not necessary to show that an unlawful factor was the only factor causing the decision, but

merely that an unlawful factor entered into the decision making in any degree.

5. The Commission failed to show by a preponderance of the evidence that the reason

given by respondent for its discharge of Ms. Spino was not the true reason for its action, but only a

pretext for unlawful discrimination.

6. The Commission failed to show that complainant's age was a factor in the decision to

discharge Ms. Spino.

BY ~~~~ _

Administrative Law JudgePost Office Box 246Charleston, West Virginia 25321(304) 344-3293